Tuesday, March 27, 2012


We all know that high-profile civil and criminal cases are routinely tried in the media long before they ever reach a courtroom; legal teams concoct media strategies to influence potential jurors long before they're called to a voir dire. It's happening on behalf of George Zimmerman now, of course.

I think a lot of people naively assumed before now that the Supreme Court was above all that. You get a sense of that while reading the lead paragraphs of the New York Times story on Randy Barnett, the libertarian lawyer who's championed the notion that the Obama health care law is unconstitutional:

When Congress passed legislation requiring nearly all Americans to obtain health insurance, Randy E. Barnett, a passionate libertarian who teaches law at Georgetown, argued that the bill was unconstitutional. Many of his colleagues, on both the left and the right, dismissed the idea as ridiculous -- and still do.

But over the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law's constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court.

"He's gotten an amazing amount of attention for an argument that he created out of whole cloth," said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. "Under existing case law this is a very easy case; this is obviously constitutional. I think he's going to lose eight to one."

As we know now, he's not going to lose eight to one. In fact, he's going to win:

CNN's legal correspondent Jeffrey Toobin reports that the court's conservative wing appeared skeptical of the Obama administration's arguments in favor of the individual mandate provision of the Affordable Care Act.

"This was a train wreck for the Obama administration. This law looks like it's going to be struck down," Toobin said on CNN. "All of the predictions including mine that the justices would not have a problem with this law were wrong."


...Justice Anthony Kennedy's comment Tuesday morning during the arguments at the heart of the health-care case have to leave the government -- and the Obama administration -- a little worried.

... Justice Kennedy, largely viewed as the swing vote in the case. said Tuesday the government has a "very heavy burden of justification" to show where the Constitution authorizes the Congress to change the relation of individuals to the government.

... Solicitor General Donald Verrilli was defending the law before the justices, arguing that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product.

Justice Kennedy pushed Verrilli on this front, asking whether the same reasoning could apply to food. The justice asked what limits, if any, there would be to government powers under his argument.

Sounds like an argument ripped straight from the challengers' playbook....

I'd say the 24/7 Overton-window movers of the right swayed Kennedy the way George Zimmerman's lawyers are trying to sway any jurors who might hear his case, only in a (perhaps) more high-class way -- by pressing the notion that (as the Times characterizes Randy Barnett's argument) the health care law is "unprecedented, uncabined (lawyerly jargon for unlimited), unnecessary and dangerous" relentlessly, and in every forum possible, until the longtime assumption of constitutionality for laws of this kind is now called into question. You know the old saying that "the Supreme Court follows the election returns"? Well, the Court isn't merely going to follow the 2010 election returns -- it's going to follow the cable news and AM radio ratings. Anthony Kennedy is responding to years of zone-flooding by anti-PPACA monomaniacs, and by the entire wave of pseudo-libertarians who've arisen in recent years to question every aspect of modern government devised since the days of Wilson or Teddy Roosevelt. This is how it is now. Anyone who thought the Supreme Court was above all this, well, you just lost your innocence, and it's about time.


BH said...

I think it's too early to say. Don't get me wrong, I've no naive faith in the purity of S Ct justices (or much else to do with the law) - I'm 60, and have practiced law for 30 years and counting. But, notwithstanding the tenor of the questioning, I'd still make it 50/50 as to the individual mandate. Which is another way of saying: I have no idea where Kennedy (and to a lesser extent, Roberts) is going to end up, nor do I think it'll be all that obvious even after oral argument concludes. One thing I keep remembering is that supposedly, one of the reasons why Kagan was appointed was that she had a talent for schmoozing/swaying ideological opponents; we may find out.

Joshua Holland said...

"As we know now, he's not going to lose eight to one. In fact, he's going to win"

No, no, no. We don't know anything yet. They can uphold it, or they can strike down the mandate and leave the rest. We won't know until June -- Toobin's not a justice.

Steve M. said...

I'm sticking with my prediction that the Four Amigos are hell-bent on making mischief and bringing down Obama.

Steve M. said...

By the way, it's not just Toobin -- Adam Serwer was also appalled by Verrilli's ineptitude in defending the law.